Despite some technical measures undertaken by the government to guarantee freedom of the press, the penal code can be used to limit journalists’ freedom
In September 2019, the Moroccan government submitted its periodic follow-up report to the UN Human Rights Council (HRC) regarding the implementation of recommendations emanating from of the third cycle of the universal periodic review (UPR) mechanism. The government included in its report various initiatives and measures taken in the field of human rights, inter alia, the protection of freedom of the press. The report was introduced in the context of implementing the recommendations received and accepted by Morocco during its participation in the UN third cycle of the UPR held in September 2017 where the Moroccan Government received 244 recommendations, 8 out of which called upon the government to step up its actions to promote freedom of opinion and expression.
The report appears, at first sight, to provide extensive responses to showcase Morocco’s promotion of freedom of opinion and expression. However, a careful review of the report reveals that the government’s response has chiefly focused on technical measures in its efforts to promote freedom of opinion and expression, as it rejects substantial amendments that could ensure freedom of the press, particularly recommendations regarding the cessation of the criminal prosecution of journalists for publications.
The UPR provides an opportunity for each State “to declare what actions they have taken to improve the human rights situations in their countries and to fulfill their human rights obligations”. Hence, the assessment of the government’s interaction with the UN mechanisms to protect human rights is crucial to evaluating freedom of the press in Morocco, and to investigating the significance of media in the government’s agendas. Assessing the Moroccan government’s interaction with the UN recommendations regarding freedom of the press, enables us to form an understanding of the government’s perception of public policies that are related to the media sector. While Morocco accepted 191 recommendations, five of which are related to media, it rejected three that are related to freedom of the press, particularly regarding the cessation of the criminal prosecution of journalists for publications, which is considered as a “formal repudiation” of previous governmental obligations. The accepted recommendations, on the other hand, have not been properly implemented and, thus, did not have a significant impact on solving problems associated with freedom of the press.
Recommendations: Between Acceptance and Rejection
According to 2017’s report of the working Group on the UPR about Morocco, the kingdom has received three recommendations all geared towards the cessation of the prosecution of journalists under the Criminal Code instead of the Press Code for performing their duties, as well as the release journalists and other individuals detained for exercising their rights to freedom of expression.
The first recommendation called on Morocco to “Refrain from referring to laws other than the Press Code when dealing with infractions of the freedom of expression”. The second recommendation called on Morocco to “end the prosecution of journalists under the Criminal Code for peacefully exercising their right to freedom of opinion and expression and for ensuring the right to information”. Whereas the third one includes a demand to “end the prosecution of and release journalists and other individuals detained solely for exercising their rights to freedom of expression, peaceful assembly and association”.
The Kingdom of Morocco completely rejected the three aforementioned recommendations, confirming its position in refuting the complete cancelation of journalists’ prosecution under the Criminal Code since “the prosecution of journalists in cases that fall outside the scope of their professional duties should not be subject to this exception, in order to guarantee citizens’ rights and the principle of equality before the law”.
On the other hand, Morocco accepted five recommendations on freedom of opinion and expression that were included in “the periodic report on the follow up on the implementation of recommendations made during the third cycle of the universal periodic review” which presents the efforts and measures that the government has undertaken to implement the recommendations and which was issued by the Ministry of State for Human Rights and Relations with Civil Society. This paper will assess the compatibility of these measures with the universal human rights instruments and mechanisms. The five accepted recommendations focused on ensuring respect for the provisions of the Constitution that are related to freedom of the press and freedom of opinion and expression, and making the provisions of the Criminal Code compliant with the requirements of Article 19 of the International Covenant on Civil and Political Rights. They also focused on promoting freedom of expression by implementing the law establishing the National Press Council.
The governmental periodic report focused also on three axes related to these recommendations: the legal and institutional framework of freedom of the press, self-regulation, and public support of the national media. In regard to the first axis, the government emphasized that “freedom of the press went through a significant development at the level of legislature and institutions, and that guarantees, chiefly based on freedom, pluralism, freedom and protection, have been introduced to uphold journalists’ rights.” The report also addressed “the establishment of the National Press Council as a body mandated to ensure respect for profession’s ethics and protect every journalist’s right to issue comments and publish, as well as the responsibility to issue press cards”. Lastly, the government expressed its commitment to “cope with the development of paper and electronic journalism by creating new evaluation and assessment mechanisms to support journalism, publishing, printing and distribution. To this end, the government adopted a new decree relating to the support of journalism and printing and publishing enterprises, and aiming at establishing a framework built on principles of governance and transparency when granting support.”
A Punitive Legal Framework
The rejection of recommendations relating to the criminal prosecution of journalists in cases that fall outside the scope of their professional duties is a matter of utmost concern for journalists and human right activists. This concern was expressed when the Press and Publications Code was being discussed before it has been approved in August 2016. It aroused from the part affirming the existence of a “bridge” between the Press Code and the Criminal Code as stipulated in Article 17 of the Press Code: “The provisions of other laws shall not be applied in any matter for which there is a clear provision in the Press and Publications Code”, for the protection that this article provides for journalists from criminal prosecution in cases of publication is not stated clearly; the article was broadly worded in order to ensure the persisting existence of a bridge between the Press Code and the Criminal Code in cases related to publications.
The willingness to replace the Press Code with the Criminal Code is underscored in a paragraph included in the Government’s periodic report regarding the third cycle of the universal periodic review. It states that “the prosecution of journalists in cases that fall outside the scope of their professional duties, or cases of causing prejudice to Islam, the monarchy, or Morocco’s territorial integrity, security and stability, such as cases of praising terrorism, should not be subject to this exception” though these offenses are already contained in law 88.13 of the Press and Publications Code.
Moreover, the fact that the periodic report associated the promotion of freedom of the press with the necessity to “guarantee the principle of equality before the law” confirms the government’s inclination towards pursuing journalists under the Criminal Code instead of the Press Code in cases related to publications. Ensuring equality of citizens before the law means that both ordinary citizens and journalists could be subjected to prosecution under the Criminal Code in cases related to defamation, libel, and slander.
Though the government has affirmed its interest in the recommendation relating to the adaptation of the Criminal Code to the provisions of Article 19 of the International Covenant on Civil and Political Rights, it has focused mainly on the constraints included in the third paragraph providing for “the protection of the rights and reputations of other people, the protection of national security, public order, health and morals.” It must be noted, however, that universal standards do not regard these exceptions as absolute and thus can be used solely in a specific and narrow scope, as stated by the Human Rights Committee in 2011 in its general comment N° 34 that explains Article 19 of the International Covenant on Civil and Political Rights. In this comment, the UN body has laid down a number of specific conditions, stating that it is only subject to these conditions that restrictions may be imposed, in order to avoid the use of those restrictions to constraint the exercise of freedom of expression and opinion.
In contrast to this punitive approach in dealing with these offenses, the government has established a number of procedures in order to protect journalists, particularly through the operationalization of the mechanism in charge of receiving complaints in cases of assaults on journalists in the exercise of their functions. In this regard, a special unit “has been created within the department of communication to receive and process complaints, and which has been announced officially when the Ministry of Culture and Communication (department of communication) issued a detailed report in 2019 on the press freedom indices in Morocco. In fact, journalists know little about this unit, which has not shared with the journalists its administrative reports and digital indices on journalists’’ freedom violations as well as the measures taken to protect them.
The second indicator is the current government’s submission, immediately upon its installation, of draft law No. 71.17 which amends and supersedes Law No. 88.13 related to the press and publications. The draft law included various amendments aiming at copying articles from the Press Code and leaving their regulation to the Criminal Code, which might allow for the prosecution of journalists under the Criminal Code, which is not confined to fines, but exceeds them to include penalties involving deprivation of liberty. For example, this draft law provided for the copying of legal requirements from the Press and Publications Code such as the incitement to hatred or discrimination… and “causing offense to the judiciary, public officials or foreign heads of states”. This raised concerns among journalists about their prosecution under the Criminal Code in cases related to publications behind an overbroad legal veil. The aforementioned draft law was submitted to the committee of education, culture and communication within the House of Representatives in March 20, 2018 for discussion and approval, however, it has never been activated due to the controversial debate over its provisions.
The concerns expressed by journalists are, in fact, justifiable given the persistence of the prosecution of journalists under the provisions of laws other than the Press and Publications code in cases related to publications, as was the case of the four journalists who were prosecuted for allegedly leaking data and news related to the parliamentary committee of inquiry. On December 23, 2019, Rabat’s Court of Appeal handed the journalists a suspended six-month prison sentence and fined them 10,000 dirhams. Mustafa al-Khalil, former minister in charge of relations with parliament and civil society, considered this trial as hardly convincing for “the case is about publishing news on which they should normally be prosecuted under the provisions of the Press Code instead of the provisions of the regulatory law of the committees of inquiry”.
Self-Regulation and Public Support
The government considered the establishment of the National Press Council as an institutional guarantee for freedom of the press in Morocco. Though regarded as a “body mandated to ensure respect for profession’s ethics and protect every journalist’s right to issue comments and publish”, it would be premature to assess its work at this stage, given that it was established a short while ago and could not exercise all its powers. Its members were elected in June 2018, but its internal law has not been published yet on the Official Bulletin (January 2020).This has impeded full exercise of its powers, particularly those relating to regulating access to the profession, and mediating and arbitrating in matters related to ethics, which are frequently encountered in an era of digital and technological revolution.
Also, the issuance of the “national charter for journalistic ethics” by the government to provide the conditions for ensuring freedom of the press has been criticized by professional journalism associations. The Moroccan Forum for Young Journalists considered that some articles of the charter were formulated in a manner that makes them “punitive provisions «rather than ethical rules, especially that they are written in broad terms that allow for multiple interpretations. Moreover, the charter did not take into account several international digital and technological developments that are related to freedom and ethics of the press. Nevertheless, the charter remains a forward step, especially that the text can be subjected to improvement in the future.
In addition to self-regulation, the governmental report includes several chapters related to public support for newspapers and electronic websites. It refers to the decree of March 2019 on the support of journalism and printing and publishing enterprises, and aiming at establishing a framework built on principles of governance and transparency when granting support. However, the public support did not provide the environment that would enable an independent, diverse media landscape to emerge. This conclusion has been referred to in the annual report issued by the Court of Accounts for the years 2015 and 2016, revealing that “state aid for newspapers is not mainly spent on the qualifications of these enterprises, but is rather spent on mere managerial matters”.
Even the management of state aid for pubic audio-visual media is ambiguous; On the one hand, it should fulfill the commitments contained in the scope statement, which insist on delivering a public service based on standards of quality, professionalism, diversity and competitiveness. On the other hand, the financial situation of official TV stations and channels clearly impede them from fulfilling these commitments.
Therefore, state-owned media cannot enjoy freedom without respecting the principles of the public service, which is costly given its pivotal role of providing citizens with as much high-quality information as possible in order to enable them to actively contribute to the political life and take part in the economic, social and cultural life, as well as exercise oversight over public issues.
The public channel 2M presents a vivid illustration of this; its financial situation is impeding it from fulfilling the commitments contained in its scope statement. According to the francophone website “Media24”, the cumulative losses on Soread-2M Company amounted to 720 million dirhams, which is roughly double its estimated capital of 359 million dirhams. To overtake the situation, the general assembly of Soread-2M decided during the meeting it held on 31 December 2016 to increase its capital, but this has not resulted in the desired outcome for the State did not pay its share, and the same scenario occurred again in June 2018.. This situation made the company reliant solely on advertising revenues, which negatively affects its level of commitment to the principles of public service.
This interrelation between the principles of public service that is conductive to freedom of the press and the financial support for state-owned audiovisual media was not included in the periodic report regarding the follow-up on the implementation of the recommendations emanating from the third cycle of the universal periodic review mechanism. Instead, the government was content with reviewing general guidelines regarding the standards of public support and other measures regarding the promotion of the principles of pluralism.
Conclusion and recommendations
Though the Moroccan kingdom has advanced in respect to the adaptation of its national laws with the universal human rights instruments, its conventional practices of “freedom of the media” still have not fulfilled the expectations of professional journalists and their representatives as well as the human rights associations.
The existence of a “bridge” which can lead any journalist to criminal prosecution for their publications necessitates an amendment of the Press Code in a way that ceases such prosecutions. Furthermore, the unit that the Ministry of Communications has established to receive journalists’ assault complaints regarding appears to be ineffectual. Accordingly, Morocco ought to develop more efficient mechanisms to protect journalists through establishing a protective mechanism within the National Human Rights Council, for instance, or forming a committee comprising representatives of specific governmental sectors and professional associations working in the field. The fourth cycle of the universal review of the year 2022 represents a new test for both national and international civil society in order to encourage the government to accept recommendations that are geared towards strengthening freedom of the press.
The primary responsibility of “holding journalists accountable” in case they supposedly violate journalistic ethics should lie with professionals through the National Press Council. This requires a rights-oriented reading of “the national charter for journalistic ethics”, the promotion of the independence of the National Press Council, and an expeditious publication of its internal law on the Official Bulletin in order to exercise its powers provided for in its implementing regulation.
Also, the institutional framework and self-regulation that guarantee freedom of the press in accordance with the international standards are indivisible from the public support for the media. Therefore, not only its budget allocation should be increased, but it should also be connected to the quality of the product provided to the citizen.
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